AUSTRALIAN POSTAL COMMISSION v ABALOS [1991] NSWCA 10

AUSTRALIAN POSTAL COMMISSION v ABALOS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MAHONEY and MEAGHER JJA 24 April 1991, 1 November 1991

[1991] NSWCA 10

NEGLIGENCE — whether defendant's failure to eliminate or minimise risk of injury showed want of reasonable care for plaintiff's safety — on the facts found it did — no question of principle.

DAMAGES — quantum — no question of principle.

NATURE OF JURISDICTION: REMITTED FROM HIGH COURT TO DETERMINE THE OUTSTANDING ISSUES. (MASON CJ, DEANE, DAWSON, GAUDRON AND McHUGH JJ).

Samuels JA The plaintiff, who is the present respondent, sought to recover damages from the defendant, the present appellant, for injuries which she alleged had been negligently inflicted upon her while she was employed by the defendant as a mail office coder, the nub of her case being that the defendant had failed adequately to supervise the manner in which she physically performed her work. As a result, she contended that she had sustained bilateral lateral epicondylitis which is an inflammation of the protruding part of the humerus on the lateral aspect of the elbow joint. The plaintiff asserted, and Mathews J, the learned trial judge found, that by reason of the posture in which the plaintiff had held her right arm while depressing the keys on the equipment upon which she was required to work, she had increased the load on the relevant muscles of the arm and had, by that means, suffered epicondylitis in both arms, although, as her Honour found, the employment was a contributing factor to the condition of the right, but not of the left, arm.

The learned judge found that the plaintiffs injury had been foreseeable; and, relying upon the evidence and the demonstrations of a Mrs Archer, a supervisor in the coding room, concluded that the coding operations in which the plaintiff was involved were capable of being carried out with a minimal risk of injury. Hence, the learned judge found that the defendant was in breach of its duty by not supervising the work of the plaintiff so as to ensure that she adopted "a correct, relaxed posture while performing her work." I should acknowledge at this point that I have had the unusual but extremely helpful opportunity of being able to draw the facts from a judgment of the High Court, and I am therefore respectfully indebted to the judgment of McHugh J in that respect (see Abalos v Australian Postal Commission (1990-91) 171 CLR 167.